Does a landlocked landowner have a legal right of access to a public right-of-way?
QUESTION: I’ve been approached by someone who wants to list 10 acres of timber land with me. It’s a nice piece of land but there’s a catch. His land is surrounded by a larger tract owned by the person who sold him the land. The property can be accessed from the highway over a very rough dirt road that the owner of the larger tract has allowed my prospect to use, but there is no deeded right of way. The prospect seems to believe that North Carolina law gives the owner of a landlocked piece of property legal rights to access their property, but I’m not sure that is right. Can you shed any light on this situation?
ANSWER: The owner of real estate does not have any legal rights to access their property from a public right-of-way under North Carolina law simply because the property is landlocked. Having said that, there is a statutory procedure for establishing a “cartway” for the owners of landlocked land who are using the land for “the cultivation of any land or the cutting and removing of any standing timber, or the working of any quarries, mines, or minerals, or the operating of any industrial or manufacturing plants, or public or private cemetery, or taking action preparatory to the operation of any such enterprises…” See NC General Statutes Section 139-69. Since the land your prospective client owns is timber land, he might possibly have the right to establish a cartway under the statute if the owner of the surrounding tract won’t grant him a deeded easement. The statute is strictly interpreted by the courts, and a cartway is not available to someone who is using or intends to use the property for residential purposes or for other purposes not listed in the statute.
The procedure for establishing a cartway involves filing a special proceeding with the Clerk of Court’s office, and if the clerk determines that a cartway is “necessary, reasonable, and just,” three disinterested persons are appointed to lay off a cartway of no less than 18 feet and no more than 30 feet wide, and to assess the damages the owner of the land over which the cartway is laid off may sustain. See NC General Statues Section 139-68.
Since his property is surrounded by property owned by the person who sold it to him, your prospect may have a legal basis for claiming that he has what is known under common law as an implied easement by necessity. The law of implied easements is quite complicated, and the prospect should be strongly advised to seek legal counsel to advise him on his rights and to potentially help him negotiate and establish a deeded easement. Interestingly, if he does have a right to an easement by necessity, NC case law makes it clear that he must seek his way “out” by enforcing the easement by necessity and not by the cartway statute.
Lastly, there’s nothing that would prohibit you from listing and selling landlocked property, but the lack of legal access to a public right-of-way is a material fact that you would be required to disclose, and that likely would impact interest in the property. If the seller does happen to receive an offer on the property, an attorney should make appropriate changes to the seller’s obligation to deliver marketable and insurable title and to provide legal access to the property.
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